Elberte v Latvia ECtHR App.No. 61243/08 13 April 2015

Next month the Human Transplantation (Wales) Act 2013 comes in to force. Described as the most significant piece of legislation passed by the Welsh Assembly, it will make Wales the first UK country to introduce a ‘soft opt-out’ system for organ and tissue donation. From 1 December 2015 a deemed consent system will operate for organ donation where the presumption will be that people aged 18 or over, who have been resident in Wales for over 12 months, want to donate their organs at their death, unless they have specifically objected.

This Act has laudable objectives and is anticipated to save countless lives through a 25% rise in the availability of organs for transplant.

However, those who favour an opt-in system warn of the excesses that can happen if state control and oversight of such a system is lax. Such risks were shown in stark detail in a recent European Court of Human Rights decision involving Latvia, where shocking abuse of a ‘presumed consent’ system was revealed.

Smith v HM Coroner for Cornwall (2015) 22/10/2015

The important role a coroner’s inquest has to play in elucidating factors relevant to the death in a way that might then allow for the greater protection of the wider public is exemplified by this recent decision of the Divisional Court. Inquests into two deaths from carbon monoxide poisoning were overturned where full information regarding the knowledge and correction of a design fault in the gas cooker thought to be responsible had neither been available nor explored.

Serjeants’ Inn Chambers recently hosted an evening with Sir Robert Francis QC to discuss and reflect upon the impact of the Duty of Candour, as recommended in the 2013 Francis Report, upon practice in a variety of healthcare areas. Cecily White and Paul Spencer considered the impact in the Coronial jurisdiction of the rather snappily named “Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014” (ie the Duty of Candour regulations). Their paper, reproduced here, is summarised below.

“Fairness in an inquest must be fashioned in an environment where there are no pleadings and in which those given leave to appear as interested persons do not have a case to put. The evidence at inquests often takes an unexpected turn and calls for a degree of flexibility in the procedure to be followed as a consequence. The rules of evidence applied in criminal and civil proceedings do not apply. Questions of fairness to those involved in inquest proceedings must be judged against all these essential features and also in the context that the statutory scheme prohibits a finding of criminal liability on the part of a named person, or of civil liability”

Burnett LJ

Mr. Wilson, a consultant cardiothoracic surgeon, applied for judicial review of part of the coroner’s conclusions in relation to the deaths of three of his patients having undergone cardiac surgery at his hands.

Thompson v HM Assistant Coroner for Durham [2015] EWHC 1781 (Admin)

Kristian Thompson was 19 years old when he died. He was a detained patient in a hospital secure unit under s.3 Mental Health Act. On the day of his death he had suffered an episode of incontinence and went to shower. He was found in the shower, collapsed on the floor with the shower running. He did not recover.

At the inquest in November 2012 the assistant coroner returned an open verdict, recording the medical cause of death as "unascertained". The pathologist and consultant neuro-pathologist involved in the post-mortem and the consultant physician who had been involved in Kristian’s treatment post-collapse considered two possible causes of death (sudden and unexpected death in epilepsy (‘SUDEP’) and sudden adult death syndrome (‘SADS’). In the absence of an ante-mortem diagnosis of epilepsy the doctors were unable to come to any probable conclusion. However, the pathologist stated that he would alter his opinion on the cause of death if an expert clinician could diagnose epilepsy at any time.

There had been insufficiency of inquiry such that it was necessary and desirable in the interests of justice to hold a fresh inquest

On 20 August 2015 the Lord Chancellor published revised guidance on civil legal aid funding in inquest cases. It takes into account the conclusions of the Court of Appeal in the case of Letts v The Lord Chancellor [2015] Inquest Law Reports 15, and now recognises that there are some categories of case in which the mere fact of death gives rise to a possibility of State responsibility and this suffices to trigger the Article 2 procedural duty to conduct an independent investigation.

The previous guidance had suggested that an arguable breach of a substantive duty had to be identifiable to engage the need for an Art 2 inquest. It is now made clear that there are certain categories of death where the automatic duty arises whether or not the evidence in the case discloses an arguable breach of any of the substantive obligations.

Senior Coroner for Cumbria v Ian Smith [2015] EWHC 2465 (Admin)

Poppi Worthington, was only 13 months old when she died in hospital in December 2012 having apparently sustained fractures to her leg and other injuries. Yet despite there clearly being reason to suspect that this was a violent or unnatural death, and an inquest already having been held, none of the facts surrounding her death have as yet been made public. Poppi’s inquest in October 2014 took only seven minutes to complete; the Coroner returned an open conclusion and found that her cause of death was ‘unascertained’. It is hardly surprising then that the High Court has now overturned that first inquest and determined that a fresh inquest should be held.

“The Coroner did not give any information about the circumstances leading to the girl’s death. The inquest did not address questions about her welfare, how she was discovered, whether any attempts were made to revive her and whether any public agencies were at fault.”

This case re-emphasizes the duty of coroners to hold their inquests fully in public no matter how difficult the surrounding circumstances. Moreover, that this case had to be brought by the present Senior Coroner against the previous Senior Coroner brings into question whether there should be some simpler mechanism than requiring a Senior Coroner to, firstly, seek a fiat of the Attorney General and, secondly, make a High Court application under s.13 Coroner’s Act 1988 when he or she seeks to put right obvious shortcomings and hold a fresh inquest.

Coroners sitting without a jury are now encouraged by the Chief Coroner’s Guidance (no. 17) to deliver a ‘summing up’ in which they state orally, in open court, their key findings of fact before recording their formal inquest conclusions. But what is to be done when the Coroner oversteps the mark and makes unlawful factual findings or comments during this summing up?

The case of Dr S is one recent example of a successful Judicial Review challenge to a Coroner’s unlawful comments about a witness’ probity. However another recent case MRH Solicitor v Manchester County Court EWHC [2015] 1795 raises the question of whether there might be an alternative and simpler mechanism for quashing and striking from the record such findings where the inquest conclusion itself is not challenged.

The CJA 2009 entered the “terrible twos” this week having come into to force on 25 July 2013. Its birthday gift was the publication of the ‘Second Annual Report of the Chief Coroner to the Lord Chancellor: 2014-2015’, which details the gradual evolution of the Coroner’s Service as a combination of the CJA 2009 and the efforts of the Chief Coroner lead the service (mostly willingly) into the 21st Century.

With the growing popularity of narrative verdicts in the mid-2000’s it had become common practice for Art 2 inquests to conclude with a lengthy jury narrative outlining a multitude of shortcomings by public bodies. That practice has largely died out: the Court of Appeal’s decision in R (Lewis) v Mid and North Shropshire Coroner [2009] Inquest LR 294 [2010] 1 WLR 1836, and the more recent Chief Coroner’s Guidance no. 17 on conclusions, have significantly curtailed the number of issues that coroners now direct juries to determine at the end of an Art 2 inquest. That there is no longer any duty for non-causative shortcomings to be recorded has led many coroners to only use their power to do so where they require a jury’s assistance to determine disputed facts as a basis for the coroner’s PFD report.

However a looming case might change the practice yet again as permission has recently been given in Wiggins to bring a judicial review claim addressing the question of whether the causation point in Lewis needs to be re-visited in light of the approach adopted to Art 2 liability in Sarjantson v Chief Constable of Humberside [2013] Inquest LR 251, [2014] QB 411.